Appeal from the Circuit Court of Cook County; the Hon. Robert
Sulski, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following his entry of a guilty plea, defendant was found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) and was sentenced to a term of eight years in the Illinois Department of Corrections.
He appeals, contending that (1) he was denied effective assistance of counsel where the public defender representing him failed to advise him that a plea of guilty waived the right to appeal the trial court's denial of a motion to suppress; (2) he was denied his right to representation by counsel free from conflicting interests where the same attorney represented him on his motion to vacate his guilty plea; (3) he did not enter a knowing and voluntary plea of guilty; and (4) the trial court erred in denying his motion to vacate his plea of guilty where counsel failed to file a certificate pursuant to Supreme Court Rule 604(d) (73 Ill.2d R. 604).
Material to our disposition are the following facts.
Defendant was charged by information with two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2).
An assistant public defender was appointed to represent defendant. Defendant filed a motion to suppress the identification testimony, alleging that the pretrial identification procedures employed by the police were unduly suggestive.
On August 14, 1980, a hearing was held on defendant's motion to suppress. The following pertinent evidence was adduced at the hearing on the motion.
Rev. and Mrs. Lawrence Harris were the victims of an armed robbery on February 12, 1980. Officer Patrick Foley testified that both he and his partner, Officer James Capesius, went to their home on February 16 for the purpose of interviewing them and showing them photos in regard to the robbery.
After showing the Harrises approximately 50 photos without any identification resulting, the police officers contacted Robert Johnson, a witness to the robbery. Johnson had seen defendant in the area over a period of years and from time to time would "say hello to him." The police officers showed Johnson a stack of 30 or 40 photos which differed from those originally viewed by the Harrises, and he made a positive identification of defendant. Returning to the Harris home later that afternoon, the officers showed them nine photos which included the defendant's.
Officer Foley further testified that the Harrises were separated when viewing the photos, but were in the same room and could hear the conversation of each other. He stated that when Mrs. Harris came to defendant's picture she said, "That's the man."
Octavia Harris testified that she was the victim of an armed robbery on February 12, 1980, at Ridgeway and Chicago Avenues in Chicago, Illinois. She stated that the police officers did not tell her that they thought the suspect might be in the second group of photos; however, they did inform her that Johnson had picked out one of the men in the photos they were showing her.
She further testified that she later viewed a lineup of five suspects while alone in a room at the police station with one of the police officers with her. She identified defendant after two or three minutes without the investigators directing her to identify him. Prior to the lineup, she had neither seen nor confronted the defendant in the police station.
Lawrence Harris testified that on February 16, 1980, the police officers arrived at his home with nine or 10 photos which did not contain defendant's photograph. They returned 2 1/2 hours later with a "nice stack" of photos from which he made an identification of defendant. He identified a photograph of defendant from this group and did not know at the time which photograph had been previously identified by his wife. He further stated that the police did not tell him that a suspect might be in the group of photos.
The police gave the Harrises a ride to the police station and told him they thought the suspect would be in the lineup. He was not with his wife when he made an identification of defendant after three or four minutes; the policeman with him did not say anything to him during that time.
Robert Johnson testified that he identified defendant's photo in a stack of photos supplied by the police on February 16, 1980. He told the police that he recognized the defendant from seeing him over a ...